Genglebach v. Payne

Decision Date09 January 1922
Docket NumberNo. 14207.,14207.
PartiesGENGLEBACH v. PAYNE, Director General of Railroads.
CourtMissouri Court of Appeals

Appeal from Circuit Court, Livingston County; Arch B. Davis, Judge.

"Not to be officially published."

Action by Druscilla C. Genglebach against John Barton Payne, Director General of Railroads. From a judgment for plaintiff, defendant appeals. Affirmed.

Cyrus Crane and Geo. J. Mersereau, both of Kansas City, S. Jones, of Carrollton, and John H. Lathrop, of Kansas City, for appellant.

Pross T. Cross, of Lathrop, R. H. Musser, of Plattsburg, and Davis & Ashby, of. Chillicothe, for respondent.

THIMBLE, P. J.

Plaintiff, in driving her father's automobile south on Main street in the city of Plattsburg, was about to pass over the crossing of the Atchison, Topeka & Santa Fe Railway, when she was struck and injured by a west-bound passenger train, about 10 o'clock in the morning of September 18, 1918. She brought this suit, and recovered a judgment for $1,800 damages, from which defendant has appealed.

It is urgently contended that the demurrer to the evidence should have been sustained because of plaintiff's contributory negligence. Of course, in view of the verdict in plaintiff's favor, the facts disclosed by the record, when viewed in their most favorable aspect to plaintiff, must conclusively and beyond question show such contributory negligence else the contention cannot be sustained. A careful examination of the record and a somewhat detailed statement of the facts are therefore rendered necessary.

The crossing is in the heart of Plattsburg, being located a very short distance, perhaps half a block, north and slightly west of the courthouse, which fronts on Main street, a much-traveled thoroughfare. The railway enters the town from a somewhat southeasterly direction, but shortly before reaching the crossing on Main street the track makes a decided curve, so that from the curve west to and past the crossing the railway rung practically west. Main street, as the crossing is approached from the north, as plaintiff was doing, is considerably upgrade, though the narrow space occupied by the, railway track is practically level, and then south of the track the upgrade begins again. At about the end of the curve, or shortly before the west end thereof is completed, the track emerges from a cut, with high banks, held by stone walls on either side. On the south side of, and very close to, the track, the bank and stone wall continue on west up to the crossing; that is, up to the east side of Main street. North of the track, from the west end of the cut and curve on west to the crossing, there is no continuation of the bank or stone wall, but houses stand along there close to the right of way, the west one of which is located within a very short distance of the east line of Main street.

On the right of way north of the track and east of the crossing are two good-sized trees and two electric light or telegraph posts. The trees and posts, however, are so located as to permit a view of the track down to the curve and mouth of the cut, when one is at a certain point a very short distance north of the track. At this particular point one can easily see between tree and post down to the cut. While the trees and posts may not form much of an obstacle to the view of the track after the traveler has approached close to the track, it is manifest that the trunks of the two large trees do assist somewhat in obscuring a view of the track at the moment of first passing the house standing on the east side of the street. The right of way along here was exceedingly narrow, being not over 50 feet in width. But whatever part the trees may play in preventing an immediate and first view of the track down to the curve, the moment the house is passed, they do not afford any particular obstruction to a view of the track that far east, after getting to the above-mentioned point close to the track.

Close to the crossing on the east side of the street and north of the track, the defendant had an electric gong, which was intended to begin ringing whenever a train reached a point a considerable distance down the track. This gong had been maintained there for several years, and plaintiff was acquainted therewith, having occasion to cross there a number of times a day on her way to and from her father's farm, and she never knew of it failing to ring. On the day of the injury, however, this gong was out of order and would not ring on the approach of a train; but, as stated, plaintiff was not aware of this, and there was no notice posted that the gong was out of order. The defendant had notice that the gong was not working,' for a day or so before a man living in that vicinity had observed it was not in working order and had telephoned the station agent of this fact. Some section men were also working there a short time before, when a traveler approached at a time when a train was coming, but the gong did not ring, and consequently the men signaled the traveler and warned him of the approach of the train.

Plaintiff knew the train was due at 9:35 at the depot, some considerable distance west of the crossing a was about 10 o'clock as she approached the crossing. Her automobile was a new one, in good working order, and running without noise. As she approached the crossing, going upgrade, she was proceeding at a very low rate of speed, having slowed down to 5 or 6 miles per hour. It is manifest from her testimony that she was going very slow; that the rate of speed she gave was merely her estimate, as was also her statement of the distance she was from the track, when she said she could see down it for a distance of 250 to 280 feet; that after she had listened for a train, and had looked for one, and was proceeding to go on over the track, she was asked at what I rate she went, and said, "Well wouldn't hardly know; along about 5 miles per hour; think about that." And in speaking of the speed at which she covered the last 10 feet she said, "I wasn't going any faster, if as fast."

Plaintiff's testimony is to the effect that she could not get a view of the track for any " appreciable distance east of the crossing until she got to a point which she estimated to he about 15 feet from the track, at which point she could see down the track a distance of from 250 to 280 feet; that there were no noises to interfere with her hearing, which was good; that she listened for the ringing of the gong before and until she got to where she could see the track, for it would begin to ring when the train was a considerable distance away, and could be heard for quite a long distance. As the I gong did not ring, she went on until she got to the point close to the track, where she could see east for the distance above mentioned. Here she did not depend wholly en the gong, but looked east dawn the track: for the aforesaid distance, and saw no train. She was aware that the ordinance speed of trains in the town was 10 miles per hour. There had been some work or digging of dirt at the crossing, which, however, does not seem to have materially affected travel thereover; but plaintiff was required to give some attention to the guidance of her automobile in passing over the crossing. Having looked east and seeing no train, she undertook to go on over the crossing; but when the front wheel of her machine was about at the first rail, or near thereto, she saw a train approaching from the east and coming "mighty fast." She could not go on across, nor could she back out of the way; so in her extremity she attempted to turn her machine to the west and weep out of the danger zone. She did succeed in partly turning her machine, but the engine caught it and...

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